Calibrate Australia v Armidale Dumaresq Council

Calibrate Australia v Armidale Dumaresq Council - [2008] NSWLEC 1532 - NSWLEC 2008 case summary — Zoe

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PART A - Deferred Commencement Conditions In accordance with s80(3) of the EP &A Act the following conditions must be satisfied prior to the consent operating. 1. An amended detailed landscape plan shall be submitted and approved by the Council to show the proposed tree species to be used (which must be appropriate for the New England climate), height and spread at maturity, and a specification for soil preparation, drainage, weed control, watering, fertilising and general maintenance during establishment ( Landscape Plan ). The Landscape Plan is to include canopy trees within the development to ensure that landscaping is the dominant feature within the streetscape New tree plantings are to be a minimum of 3m horizontal distance from the line of buildings or underground services to reduce risk of future damage by limbs, roots, etc; and 2. A schedule of colours, materials and finishes shall be submitted for the approval of Council. On the above conditions being satisfied the consent will then operate subject to the conditions below in Part B. PART B - Prescribed Conditions

The following conditions are prescribed in relation to a development consent for development that involves any building work: · that the work must be carried out in accordance with the requirements of the Building Code of Australia as in force on the date the application for the relevant construction certificate is made; · that in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any building work authorised to be carried out by the consent commences.
The following conditions are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work: · A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: o showing the name, address and telephone number of the principal certifying authority for the work, and o showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and o stating that unauthorised entry to the work site is prohibited. · Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
The following conditions are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989: · Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information: o in the case of work for which a principal contractor is required to be appointed: s the name and licence number of the principal contractor, and s the name of the insurer by which the work is insured under Part 6 of that Act, o in the case of work to be done by an owner-builder: s the name of the owner-builder, and s if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit. · If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (a) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the Council) has given the council written notice of the updated information.
Fulfilment of the commitments listed in each relevant BASIX certificate for the development. General Conditions
The development must take place in accordance with the approved plans (bearing the Armidale Dumaresq Council approval stamp) and documents submitted with the application, drawn by Capital Homes, numbered 1151 Page 1 of 8 to Page 6 of 8 inclusive, and Page 8 of 8 and dated 26/10/07, and subject to the conditions below to ensure the development is consistent with Council's consent.
All Engineering works to be designed by a competent person, endorsed by a Certified Practicing Engineer, and carried out in accordance with Council's Engineering Code, unless otherwise indicated in this consent, to ensure that these works are of a sustainable and safe standard.
All sewer and drainage works associated with the approval are to comply with the requirements of AS 3500 and be completed only by a licensed plumber and drainer.
The proposed development is to be landscaped to enhance its appearance and provide shade and environmental benefits before the issue of an Occupation Certificate for the development. Approved landscaping is to be maintained at all times to the satisfaction of the Director Planning and Environmental Services' nominee. Before Release Of Construction Certificate
An 'Agreement to Meet Costs' form and monetary security of $1500 to cover the cost of carrying out rectification work in public areas in connection with the proposed new footpath crossings should any defect arise within 12 months of completion of the works. Security shall be in the form of cash or bank guarantee for an amount determined by Council. Application for a 90% refund of the security may be made on documented completion of the works, with full refund of the remaining 10% upon satisfactory completion of the 12 months' defects liability period.
Contribution toward public amenities and services for which Council is satisfied that the proposed development is likely to create a demand (as detailed in the attached schedule) is to be made (or secured by bank guarantee) prior to the issue of the Construction Certificate.
An all-weather, nuisance-free surface for pedestrians and vehicles is to be provided throughout the site, including parking areas and driveways. The surface shall be provided with effective edge support/drainage control and landscaped areas adjacent to kerbing to be self-draining to the kerb. Details to be provided to Council's Development Engineer or nominee for approval before the issue of a Construction Certificate for the development. ADVISING: Bitumen sealed compacted gravel pavement or reinforced concrete to the standards set out in the Department of Housing Road Manual, 1987, will satisfy the above requirement. Alternatively, segmental paving may be used provided it is installed as part of a pavement design in accordance with the Cement & Concrete Association of Australia's "Guide to Design and Construction" for Interlocking Concrete Road Pavements, July 1986.
A stormwater detention system is to be designed to ensure the post-development flow from the detention basin is to be no greater than the pre-development flow from the catchment. Storm events to be provided for are the 1% Annual Exceedence Probability (AEP), 5% AEP and 20% AEP. Details to be provided to Council's Development Engineer or nominee for approval before the issue of a Construction Certificate for the development.
The owner is required to enter into an agreement for payment of a contribution towards water and sewer infrastructure provided by Council for the benefit of this site. A draft agreement is enclosed for the owner's signature and return to Council with payment. Upon payment of the required contribution or completion of appropriate arrangements for payment, which must be made before the issue of the Construction Certificate, Council will issue a Certificate of Compliance, pursuant to s.64 of the Local Government Act 1993, and Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000. Before Works Commence
Council is to be given written notice of the intention to commence works and the appointment of a Principal Certifying Authority (if the PCA is not Council) at least two days before the proposed date of commencement, in accordance with cl 103 and 104 of the Environmental Planning and Assessment Regulation 2000. Such notice is given using the form enclosed with this consent.
A Construction Certificate must be obtained before work commences, in accordance with cl.146 of the Environmental Planning and Assessment Regulation 2000.
Before construction commences on the site and throughout the construction phase of the development, erosion control measures are to be installed to prevent soil erosion, water pollution or the discharge of loose sediment on surrounding land, as follows: · divert contaminated run-off away from disturbed areas, · erect silt fencing along the downhill side of the property boundary, · prevent tracking of sediment by vehicles onto roads by limiting access to the site and, where necessary, installing a temporary driveway and · stockpile all topsoil, excavated material and construction debris on the site, erecting silt fencing around the pile where appropriate. Failure to take effective action may render the developer liable to prosecution under the NSW Protection of the Environment Operations Act.
The uppermost layer of the soil profile (top soil) is to be retained on site, stockpiled and surrounded at its base with silt fencing to ensure that the topsoil is maintained in a satisfactory and reusable condition. Areas within the development not otherwise built on are to be left with not less than 100mm of topsoil with grass or other landscaping established, to provide an aesthetically pleasing development within the streetscape.
A hoarding or fence must be erected between the work site and any public place if the work is likely to cause traffic (pedestrian or vehicular) in a public place to be obstructed or otherwise inconvenient. The erected hoarding is to be sufficient to prevent any substance from or in connection with the work falling into the public place. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. The hoarding, fence or awning is to be removed once the work has been completed.
Should Council be appointed the Principal Certifying Authority, the Applicant must give at least 2 days' notice to enable the following inspections to be undertaken where appropriate for the class of building: · at the commencement of the building works** · before the pouring of footings** · before covering drainage (under hydrostatic test) · before pouring any reinforced concrete structure, such as a slab-on-ground, suspended slab, or driveway ** · before covering the framework for any wall, roof or other building element ** · before covering waterproofing in any wet area** · before covering any stormwater drainage connections** · when the building work is completed and before the issue of an occupation certificate** ** denotes a critical stage inspection (a mandatory inspection pursuant to Section 109E of the EP&A Act 1979). Please note that an Occupation Certificate cannot be issued for a development where a critical stage or other nominated inspection has not been carried out.
No storage of building materials, soil or equipment is to occur on Council's property or roads without the written consent of Council's Development Engineer and Civic and Recreation Services Manager. No unfenced, potentially dangerous activity or material to be located in close proximity to the street boundary or pedestrian walkway adjoining the site. No unsupervised transit of plant, equipment or vehicles across public areas or other obstruction of those areas is permitted. During Construction
Toilet facilities are to be provided at, or in the vicinity of the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided must be connected to an accredited sewage management facility approved by the council or some other sewage management facility approved by the council.
Effective dust control measures to be maintained during construction to maintain public safety/amenity and construction activities are to be restricted solely to the subject site. ADVISING: Failure to take effective action may render the developer liable to prosecution under the NSW Protection of the Environment Operations Act.
Materials must not be burned on-site. All waste generated on site must be disposed of at Council's Waste Disposal Depot or Waste Transfer Station, to protect the amenity of the area and avoid the potential of air pollution.
Any building work must be carried out between 7.00am and 6.00pm Mondays to Fridays and 8.00am to 5.00pm Saturdays, excluding public holidays. No audible construction is to take place outside these hours, to maintain the amenity of the locality.
Excavations and backfilling must be executed safely and in accordance with appropriate professional standards and be properly guarded and protected to prevent them from being dangerous to life or property. If excavations associated with the erection of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, must preserve and protect the building from damage, and if necessary, underpin and support the building in an approved manner. Notice of intention to do so must be given to the owner of the adjoining land at least seven days before the commencement of excavation work. The owner of the adjoining allotment of land is not liable for any part of the cost of work, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. If the soil conditions require it, retaining walls associated with the erection of the building or other approved methods for preventing the movement of the soil must be provided, and adequate provision must be made for drainage.
Roof and surface stormwater from paved and impervious areas is to be collected and directed via the required on-site detention system to a legal point of discharge, to protect the site and adjoining property from effects of flooding. Relevant work to be carried out immediately once the roof and guttering is installed.
Lighting is to be provided to pedestrian ways, dwelling entries, driveways and carparks to ensure a high level of safety and security for residents and visitors at night. Lighting is to be designed to minimise light entering adjacent dwellings, to ensure the amenity of adjoining properties is maintained.
The proposed dwellings are to be constructed to ensure that high levels of noise from external sources are restricted to a maximum level of 45dBA, measured within the habitable rooms of the buildings, in accordance with the relevant Australian Standards (including AS3671 - Road Traffic). Before Occupation / When Works Are Completed
An Occupation Certificate must be obtained before the approved use commences, in accordance with the EP&A Act and to ensure the health and safety of the building's occupants. ADVISING: Failure to obtain an Occupation Certificate is an offence under the legislation. Penalty advice for buildings (penalties do not apply to uses detailed in 109M and 109N; i.e. crown projects, Class 1a and 10 buildings or as detailed for certain temporary structures).
The property number shall be clearly and permanently displayed on or adjacent to the doorway or on the street frontage to identify the premises to the public and to essential/emergency services. Numbers shall be 100mm high x 50mm wide (minimum) and of a colour contrasting with the surface to which they are affixed.
Landscaping is to be completed in accordance with the approved Landscape Plan prior to the issue of an Occupation Certificate for the development. New tree plantings are to be a minimum of three (3) metres horizontal distance from the line of the buildings or underground infrastructure to reduce the risk of future damage by tree roots. Landscaping is to be maintained on a continual basis.
Construction of two new vehicular crossings, including layback, over the full width of the footpath, to provide effective all-weather access to site and a safe and nuisance-free surface over Council's footpath. The driveway is to extend (as a minimum) from the back of the layback/kerb to the property boundary. All works shall be in accordance with Council's Drawing No's 040-4/issue 2 and 040-3/issue 3, or other design to the approval of Council's Director Engineering or nominee, before the issue of an Occupation Certificate. ADVISING: The driveway is to be 3m wide at the rear of the layback and 3m wide at the property boundary. Segmental paving may be used provided it is installed as part of a pavement design in accordance with the Cement & Concrete Association of Australia's "Guide to Design and Construction" for Interlocking Concrete Road Pavements, July 1986.
All civil engineering and utility service works undertaken pursuant to this consent are to be inspected and tested upon completion, and details provided for the approval of the Council's Development Engineer, before the issue of an Occupation Certificate.
Approval must be obtained from the Council as the Local Water Supply and Sewer Authority for any potable water supply and sewerage work, pursuant to Chapter 7 of the Local Government Act 1993 with all relevant work completed in accordance with such approval.
The creation of a "Positive Covenant" on the title of Lot 84 DP 1116910, requiring that the detention system be maintained on an ongoing basis. The s.88b Instrument is to make provision for Council to conduct maintenance on the subject basin at the owner's expense if the basin is not maintained to an appropriate standard. Details to be provided to Council's Development Engineer or nominee for approval before the issue of an Occupation Certificate for the development.
The creation of a "Restriction as to User" on the title of Lot 84 DP 1116910, to prevent any change in shape or alteration in structure of the proposed detention system after the final approval of the required structure has been given. Details to be provided to Council's Development Engineer or nominee for approval before the issue of an Occupation Certificate for the development. Operational Matters
The proposed pumps for the alternative water supply are to be located and maintained in a manner such as not to cause offensive noise (defined in the NSW Protection of the Environment Operations Act), in order to maintain the amenity of the locality. Noise levels generated by the pumps must be restricted to a maximum of 5dBA above the background noise levels at any time, measured at the boundaries of the site.
Installation and use of proposed rainwater tank to be in accordance with Council's Rainwater Tanks Policy (POL151) (copy available on request). Direct connection between the rainwater tank and reticulated potable water supply will not be permitted, however, the reticulated potable supply may be used to top up the tank via a physical air gap. Maintenance of the tank or tanks should be in accordance with New South Wales Health guidelines for the use and maintenance of rainwater tanks.
Any lighting used on site in connection with the development is to comply with AS 4282 - Control of the Obtrusive Effects of Outdoor Lighting. Advice All building work must be carried out in the following manner to ensure compliance with the Building Code of Australia (Housing Provisions): · The timber primary building elements of the building are to be protected from subterranean termites in accordance with AS 3660.1, and a durable notice must be permanently fixed to the building in a prominent position (eg. inside the electricity meter box) indicating: o method of protection, o date of installation of system, o where a chemical barrier is used, its life expectancy as listed on the National Registration Authority label, and o the maintenance requirements of the system. · An approved polythene moisture barrier is to be provided to the underside of the concrete floor slab to prevent external moisture entering the building. · Footings and floor slabs to be constructed in accordance with the requirements of AS 2870 - Residential Slabs and Footings, to ensure the structural integrity of the building. · Timber framing to comply with the requirements of AS 1684 - Timber Framing Code, to ensure structural integrity of the building. The frame is to be adequately braced and 'tied-down' to the footings to prevent movement of the structure by wind forces. · Brickwork to be constructed in accordance with AS 3700 "Masonry Code", to ensure structural integrity of the building. Minimum clearance between the outer edge of the eaves and gutter and side boundary is 675mm, and 900mm between the wall and side boundary. · Wet areas to be finished with an impervious floor surface, and care taken to seal floor/wall junctions adequately, to protect the structure of the building and to maintain the amenity of the occupants. · Smoke alarms to be provided and located in accordance with 3.7.2 of the BCA (copy available on request), to safeguard the occupants of the building in the event of a fire. · The door to a fully enclosed sanitary compartment must open outwards, slide or be readily removable from the outside of the compartment to enable unconscious occupants to be removed from the compartment. · Any use of greywater must be carried out below surface level (ie. using porous piping - not above-ground sprinklers) and must not impact on adjoining properties, all in accordance with a Council approval under s.68 of the Local Government Act 1993. · Any plumbing, drainage and electrical work to be carried out by a licensed tradesperson, with plumbing and drainage work all in accordance with a Council approval under s.68 of the Local Government Act 1993.

At a glance

Court

Decision date

Source

Judgment (51 paragraphs)

Parties

Cases Cited (2)